Voting Rights

Ohio Ministers Speak Out Against SCOTUS Order to Block Early Voting

In response to the Supreme Court’s 5-4 vote today to block early voting in Ohio less than 24 hours before it was set to begin, Ohio members of People For the American Way Foundation’s African American Ministers Leadership Council (AAMLC) released the following statement:

“Today the Supreme Court demonstrated, yet again, that it is not interested in protecting the right of everyday Americans to participate in our democracy. From making it easier for the super-rich to buy elections to coming down on the side of those who want to block access to the polls, the conservative majority of the Roberts Court is making it crystal clear that they will not stand up for a democracy of, by, and for the people.

“The right to vote is the most fundamental right, and responsibility, that we have in a democracy. As a country, we should be working to expand access to voting, not making it harder to cast a ballot. We’re deeply disappointed that the Supreme Court has failed to protect voting rights in our state today.”

On September 17, 85 AAMLC members joined with fellow Ohio clergy in meetings with the offices of state House and Senate members to share their thoughts on the importance of protecting, and removing barriers to, the right to vote.

People For the American Way Foundation’s African American Ministers Leadership Council represents an ecumenical alliance of 1,500 African-American clergy working toward equality, justice and opportunity for all.

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PFAW Foundation’s Supreme Court 2014-2015 Term Preview

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way
Date: September 25, 2014
Subject: PFAW Foundation’s Supreme Court 2014-2015 Term Preview


The beginning of a new Supreme Court term has become a time to worry, “What’s next?” In the past two terms alone, often in 5-4 decisions, the Roberts Court has severely undermined the Voting Rights Act, continued its assault on the American people’s efforts to limit money in politics, strengthened the hand of employers who discriminate, significantly eroded church-state separation, discovered religious rights for for-profit corporations seeking to deny female employees needed contraception coverage, undercut unions, and found ways to help large corporations bypass laws designed to limit their power over small businesses and ordinary people.

As bad as the Roberts Court has been, there have also been some good decisions in the most recent terms. For instance, the Court struck down the odious Defense of Marriage Act, upheld the EPA's general authority to issue regulations on greenhouse gas emissions from power plants, and unanimously recognized our Fourth Amendment right to privacy concerning our smart phones.

The 2014-2015 Term is set to begin on October 6, the traditional First Monday in October, and the Court will be hearing a number of important cases. At the same time, perhaps half the cases it will hear this term have not been determined or announced, and there is substantial speculation on whether it will hear cases on several high-profile issues, marriage equality most prominent among them. Below is a summary of some of the major cases the Court may hear this term, along with cases already scheduled that we will be following.


CASES THAT THE COURT MIGHT HEAR

MARRIAGE EQUALITY

If the Court accepts a marriage equality case, it will obviously become the blockbuster case of the term (and perhaps the decade). The Court has already been asked to hear appeals of pro-equality rulings by three circuit courts: From the Tenth Circuit are Herbert v. Kitchen (Utah) and Smith v. Bishop (Oklahoma). From the Fourth Circuit are Rainey v. Bostic, Schaefer v. Bostic, and McQuigg v. Bostic (all Virginia). From the Seventh Circuit are Bogan v. Baskin (Indiana) and Walker v. Wolf (Wisconsin). While states and government officials who lost in the lower courts are filing the appeals, the couples who won the cases are also urging the Court to hear the appeals, so there can finally be a national resolution to the issue.

Should one of the remaining circuit courts uphold a state marriage ban, the resulting split among circuits on such a major constitutional issue would almost guarantee review by the Supreme Court. But if every circuit continues to rule the same way, the Justices might decide to let the issue be resolved there.

Conservatives like Scalia and Thomas, who have in case after case shown their hostility to LGBT equality but may be unsure of how Kennedy would vote, might not be willing to risk a Supreme Court precedent that same-sex couples have a constitutional right to marry. From their perspective, if they can’t change the outcome around the country, why make it worse by adding a jurisprudential nightmare from the nation’s highest court that would taint American law for decades to come?

For Justices likely to recognize the constitutional right to marriage equality, the calculation might be different. They, too, not knowing Kennedy’s position, might not want to risk a 5-4 ruling in the “wrong” direction on a major constitutional and societal issue. But even if they could be certain of being in the majority, they might find advantages to having the Court stay out. Justice Ginsburg, for instance, has suggested publicly that Roe v. Wade went “too far, too fast,” provoking a backlash that could otherwise have been avoided. If the legal question of marriage equality is being decided rightly in all the circuit courts, some Justices might rather leave well enough alone. In fact, Justice Ginsburg told a group of law students in mid-September that without a circuit split, she saw “no urgency” for the Court to take up the issue now, although she added that she expects the Court to take it up “sooner or later.”

Should the Court grant cert on one or more of the appeals, it could answer a number of critically important questions in addition to whether states can prohibit same-sex couples from marrying.

Exactly which constitutional right do the bans violate? While numerous courts have ruled in favor of same-sex couples, they have been anything but unanimous in their reasoning: Some have suggested that the bans violate the Due Process Clause, because the longstanding, fundamental right to marry includes the right to marry someone of the same sex. Other judges indicate that the bans violate the Equal Protection Clause because they deny the right to marry based on the sex of the people seeking to get married. Still others suggest that the bans violate the Equal Protection Clause because they discriminate against gays and lesbians. While the different legal rationales would all have the same immediate result (marriage equality), they could create very different legal precedents and have very different impacts down the line as lower courts consider other types of discrimination, whether aimed at gays and lesbians, at transgender people, or at others.

A Supreme Court ruling might decide what level of scrutiny the Equal Protection Clause requires for laws that discriminate against gay people, an issue not squarely faced in previous cases. Most government classifications are subject to – and easily pass – “rational basis” scrutiny by the courts: The law is constitutional as long as it’s rationally related to some legitimate government interest. (The Court has said that animus against gays and lesbians is not a legitimate purpose, which in the past has let it bypass the question as to whether anti-gay laws warrant more scrutiny from the courts.)

But a few types of laws trigger heightened Equal Protection scrutiny. Sex-based classifications are subject to intermediate scrutiny: They must be substantially related to an important government interest. Race-based classifications are generally subject to strict scrutiny, the highest level: They must be narrowly tailored to achieve a compelling government interest. If the Court rules that laws discriminating against lesbians and gays warrant some level of heightened scrutiny, that would have an enormous impact nationwide on all kinds of laws that discriminate against lesbians and gays, not just marriage bans.

The Court’s discussion of this issue could also shed light on whether eliminating private discrimination against LGBT people is (in the Court’s eyes) a compelling government interest. This could have an enormous impact as courts consider right wing challenges to anti-discrimination laws on the basis of the federal Religious Freedom Restoration Act or state-law analogs.


ACA SUBSIDIES

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law’s opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act,” noting that “[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble.” The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit’s.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.


CONTRACEPTION COVERAGE AND RELIGIOUS NONPROFITS

The Roberts Court may hear one or more cases involving religious nonprofits that oppose the ACA’s contraception coverage requirement, in a sequel to Hobby Lobby v. Burwell. In that case, the Roberts Court gave certain for-profit corporations religious liberty rights under the Religious Freedom Restoration Act (RFRA), then completely rewrote the law to give the chain store the right to “exercise” its religion by refusing to comply with the ACA’s contraception coverage requirement.

Under RFRA, a federal law cannot impose a substantial burden on a person’s religious exercise unless it is in furtherance of a compelling governmental interest, and it is the least restrictive means of doing so. In Hobby Lobby, the Roberts Court concluded that the corporation and its owners suffered a “substantial” burden” on their religious exercise because the owners were offended by the contraception coverage requirement, even though it did not restrict or burden what they may believe or do. The majority also concluded that the law was not the least restrictive means of furthering the government’s interest in women’s health, because the Administration offers religious nonprofits an accommodation: They are exempt if they simply sign a form certifying that they are a religious nonprofit that objects to the provision of contraceptive services, and provide a copy of that form to their insurance issuer or third-party administrator, which then has the responsibility to pay for and provide the coverage. (Churches, in contrast, are wholly exempt.) The Roberts Court concluded that the federal government can make this accommodation available to for-profit corporations, meaning the coverage requirement is not the least restrictive means of achieving the ACA’s goal.

But three days later, the Court issued a temporary injunction against enforcing even this accommodation against Wheaton College, a non-profit religious institution that argued that the accommodation substantially burdens its religious freedom. This prompted a furious dissent from the three women Justices. Although the merits of the case are still being argued before a lower federal court, this was an ominous sign of how the Roberts Court will address the legal question when it inevitably reaches the high court.

Another high-profile case (or one similar to it) that may reach the Court involves Little Sisters of the Poor. This religious nonprofit organization, too, has a religious objection to the accommodation that was designed to meet its religious objections, arguing that the form is like a permission slip that would trigger contraception coverage, making the nuns complicit in sin. However, the Little Sisters’ insurer is classified as a “church plan,” which is actually exempt from the ACA requirement. So regardless of whether the Little Sisters signed the form, their employees would still not have the contraception coverage. Nevertheless, last January, while its RFRA suit against the contraception coverage provision was before the Tenth Circuit (where it is still pending), the Supreme Court enjoined the federal government from enforcing the law until a final resolution on the merits.

It seems likely that there will be a request that this issue be considered by the Supreme Court at some point this term, either through one of these cases or one similar to them.


CASES CURRENTLY BEFORE THE COURT


EMPLOYMENT DISCRIMINATION AND WORKERS’ RIGHTS

Young v. UPS: Discrimination on the basis of pregnancy

The Supreme Court is to decide to what extent employers can treat pregnant workers temporarily unable to work differently from other workers temporarily unable to work.

This case involves Peggy Young, a pregnant employee of UPS with temporary medical restrictions on how much she could safely lift. UPS did not make any accommodations for her, such as temporary alternative work. As a result, she spent several months on unpaid leave, during which she lost her medical coverage.

In 1976, the Supreme Court ruled that discriminating against employees who are pregnant was not sex discrimination under Title VII. Congress corrected that interpretation of the law in 1978 with the Pregnancy Discrimination Act (PDA), which has two relevant provisions. First, it specifies that sex discrimination includes discrimination on the basis of pregnancy, childbirth, or related medical conditions.

The second provision explains how to apply that general principle: It says that women affected by pregnancy “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.” This establishes a basis of comparison. So while a typical sex discrimination case looks at how a female plaintiff is treated in comparison to similarly situated men, a PDA case looks at how she is treated in comparison to non-pregnant workers with similar ability (or inability) to work.

UPS’s collective bargaining contract calls for UPS to accommodate temporarily disabled employees if the disability is due to an on-the-job injury, or if they have lost their DOT certification to drive. UPS also accommodates employees who have a permanent impairment under the Americans With Disabilities Act. UPS says its policy is “pregnancy-blind:” They claim they are treating Young the same way they’d treat a non-pregnant employee whose injury doesn’t fit any of the above conditions.

But Young argues that isn’t the proper analysis under the PDA. She points out that UPS would have made an accommodation for someone “similar in their ability or inability to work” to her if they were in one of those three categories. So, she concludes, the plain text of the PDA requires UPS to accommodate her, as well.

Integrity Staffing Solutions v. Busk: Overtime pay for workers at warehouse distribution centers

The Supreme Court is to decide if employers can deny overtime pay to employees at “customer fulfillment” distribution centers for the time they spend waiting for mandatory security screenings.

This is a class-action lawsuit brought by Jesse Busk and Laurie Castro, two former employees of Integrity Staffing Solutions, which provides workers to work in the warehouses of companies like Amazon.com. At the end of the shift, the company requires every employee to go through a security check before they leave the facility to make sure they aren’t stealing the merchandise. The employees wait as long as 25 minutes to be searched. Busk and Castro claim that they should have been paid overtime for this time under the Fair Labor Standards Act (FLSA), as should all current employees, as well.

FLSA requires overtime pay when a covered employee works more than 40 hours in a workweek. In 1947, Congress helped define what counts as “work” by passing the Portal-to-Portal Act (PPA), which says that FLSA’s overtime requirement doesn’t apply to activities that are “preliminary” or “postliminary” to an employee’s primary job responsibilities. In a 1956 case called Steiner v. Mitchell, the Supreme Court interpreted the PPA as requiring overtime only for tasks that are an “integral and indispensable part of the principal activities for which covered workman are employed.”

Busk and Castro say that any activity required by and benefitting the employer (such as the security searches) are part of the actual job, not “postliminary” to it, so they count as time at work under FLSA and should generate overtime pay. They get support from an amicus brief submitted by the National Employment Lawyers Association, which details how loss-prevention activities have become integrated into the modern retail work routine, making searches like those at issue here part of an employee’s principal activities.

The workers won at the Ninth Circuit, but the court used different reasoning: that the searches are “postliminary” (so the Portal-to-Portal Act applies), but that they are an “integral and indispensable part” of the workers’ principal activities and therefore subject to overtime pay. Integrity (supported by an amicus brief from the Obama Administration) asserts that the searches are “postliminary” to work, are not an “integral and indispensable part” of the employees’ principal activities and, therefore, don’t trigger the overtime requirement.

Part of the company’s argument seems to be a results-based pitch to a corporate-friendly Court: In its certiorari petition urging the Justices to hear its appeal, Integrity Staffing wrote that since the Ninth Circuit ruling, “plaintiffs’ lawyers have brought nationwide class actions against a number of major employers—including Apple, Amazon.com, and CVS—seeking back pay (plus overtime and penalties) for time spent in security screenings.” Notice that it isn’t employees who are suing, but “plaintiffs’ lawyers,” a framing that is red meat for right-wing ideologues. This argument also seems to have less to do with discerning congressional intent and more to do with protecting large corporations.

Mach Mining v. EEOC: Pre-lawsuit settlement efforts by the EEOC

The Supreme Court is to decide if employers can escape liability for illegal discrimination by arguing that the EEOC failed to make a sufficiently good-faith attempt to reach a settlement with the employer.

Mach Mining has never hired a woman for a mining position. A woman who had been turned down several times for a coal mining job filed a sex discrimination complaint with the Equal Employment Opportunity Commission, a step that Title VII requires before filing a lawsuit. EEOC looked into the allegation, found it had merit, and – again, as required by Title VII – sought to negotiate an end to the alleged sex discrimination “by informal methods of conference, conciliation, and persuasion” before suing. After several months without success, the EEOC notified the company that it felt further efforts would be futile and initiated a lawsuit. Mach Mining says the case should be dismissed on the grounds that the EEOC didn’t make a good-faith conciliation effort. In response, the EEOC says Title VII doesn’t allow such a defense.

While several other circuits have ruled otherwise, the Seventh Circuit in this case concluded that Title VII cannot be interpreted to allow courts to inquire into the adequacy of the EEOC’s conciliation efforts. For one thing, Title VII has no express provision for an affirmative defense based on a defect in the EEOC’s conciliation’s efforts. It also calls for the EEOC to “endeavor” to end the discrimination through “informal methods of conference, conciliation, and persuasion.” If it can’t reach a result “acceptable to the Commission,” it can sue. The Seventh Circuit interpreted this as giving the EEOC great deference.

The court also noted that Title VII makes the process confidential, with penalties for making the information public without the consent of everyone concerned. That could prevent the EEOC from showing the court the evidence that it had sought to conciliate in good faith. It seems unlikely that Congress wrote Title VII to require the EEOC to defend its conciliation efforts in court but made its ability to do so dependent on the permission of the employer being sued. The court also concluded that there would be no meaningful standard of review. For instance, just how hard should the agency pursue an agreement?

A Supreme Court ruling for the employer could give employers a significant tool to stymie legitimate lawsuits against unlawful employment discrimination. As the Seventh Circuit wrote:

Simply put, the conciliation defense tempts employers to turn what was meant to be an informal negotiation into the subject of endless disputes over whether the EEOC did enough before going to court. Such disputes impose significant costs on both sides, as well as on the court, and to what end?

All the employer should legitimately hope to gain is some unspecified quantum of additional efforts at conciliation by the EEOC. The result of such a defense, as we have said in a closely related context, is to “protract and complicate Title VII litigation, and with little or no offsetting benefit.”


RELIGIOUS LIBERTY

Holt v. Hobbs: Right of a Muslim prisoner to grow a short beard

The Supreme Court is to address whether a state prison’s prohibiting a Muslim prisoner from growing a half-inch beard violates the federal Religious Land Use and Institutionalized Persons Act.

This case originated with a handwritten request to the Supreme Court from Gregory Holt (aka Abdul Maalik Muhammad), a Muslim prisoner in Arkansas, to hear his case. He states that his religious beliefs require him to have a beard, and he seeks to grow a half-inch beard. The state Department of Corrections prohibits beards generally, but allows quarter-inch beards grown for medical reasons. Muhammad sees his request as a compromise (since his religious beliefs really would have him grow it much longer) that has been accepted in prisons elsewhere.

Since he is in a state prison, Muhammad’s case is governed by a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA. Passed unanimously by Congress in 2000, RLUIPA requires prisons accepting federal funds to give greater religious liberty protections to inmates than is required by the First Amendment’s Free Exercise Clause. Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Hobby Lobby, RLUIPA is triggered when the government imposes a “substantial burden on the religious exercise” of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The state argues that the no-beard policy furthers the compelling government interests in prison safety and security, and that the proposed half-inch accommodation would not be as effective as the no-beard rule in achieving those purposes. For instance, they provide the opinions of penal experts that prisoners could use the beards to hide contraband, and that escaped prisoners could too easily and quickly change their appearance simply by shaving. Muhammad (now represented by counsel) argues that the lower courts, which ruled against him, did not provide the strict scrutiny of the state’s arguments that is required by RLUIPA.

In Hobby Lobby, the Supreme Court significantly rewrote RFRA, watering down the “substantial burden” requirement and applying the religious liberty law to for-profit corporations. Neither factor is relevant to this case, meaning the Court could rule in favor of Muhammad without rewriting the law. But the Roberts Court is known for playing the “long game.” Even if the Court rules unanimously for Muhammad, they may not all agree on the reasoning: The conservatives could write an opinion designed to be cited in future RFRA litigation strengthening the hands of those on the right who would reshape RFRA from a shield against government oppression into a sword.


VOTING RIGHTS

Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama: Racial gerrymandering

The Supreme Court is to address whether Alabama engaged in unconstitutional racial gerrymandering when it drew new state House and Senate district lines that channeled large numbers of African Americans into districts that were already majority-minority.

The GOP-controlled Alabama state legislature enacted a redistricting plan that transferred a significant portion of the black population that had previously been in majority-white districts into districts that were already majority-black. In so doing, the legislature was seeking to achieve certain percentages of black voters in the majority-black districts. At issue is whether legislators engaged in an unconstitutional effort to separate voters by race, or whether they followed traditional redistricting criteria in a way that was necessary to comply with the Voting Rights Act.

Due to population shifts, majority-black districts established after the 2000 Census lost population and had to be redrawn after the 2010 Census to bring in new people. In some cases, the population loss was disproportionately white, meaning that a significantly higher percentage of the remaining population was African American than before. In redrawing the lines while keeping the same number of majority-black districts, the legislature made two decisions that led to what some call “bleaching” – drawing lines so that large numbers of African Americans in majority-white districts would be redistricted into supermajority-black districts, and diminishing African Americans’ political influence in much of the state.

First, they chose to reduce the permissible population difference between districts from 10% (the 2000 standard) to 2%. To achieve district populations that close to each other, many more people would have to be drawn into the modified black-majority districts than would otherwise have been necessary. That huge numbers of those people would be blacks removed from majority-white districts was determined by the second decision: Ostensibly to comply with the requirement under Section 5 of the Voting Rights Act (this was before Shelby County) that new lines not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise, the African American percentages in the redrawn majority-minority districts should be at least whatever they had become in 2010.

This reapportionment was upheld by a divided three-judge federal district court. The majority concluded that race was not the predominant factor in drawing the redistricting boundaries, so that they need not be analyzed under strict scrutiny as in the 1993 Shaw v. Reno case. The majority also concluded that even if strict scrutiny applied, the legislative boundaries were narrowly tailored to achieve the compelling purpose of compliance with the preclearance provisions of Section 5 of the Voting Rights Act, which applied at the time. The plaintiffs in this case – the Alabama Legislative Black Caucus and state Democrats – challenge those conclusions, arguing that legislators had misinterpreted Section 5, that race was impermissibly the overriding criterion used by legislators in drawing lines, and that the redistricting plan violated the Fourteenth Amendment.


FREE SPEECH AND SIGN REGULATIONS

Reed v. Town of Gilbert, Arizona: Municipal sign regulations

The Supreme Court will hear a church’s Free Speech challenge to city rules regulating the size and placement of various types of signs, which affect the signs it puts up to direct people to its church services.

This case was brought by a small church (25-30 adult members) in Arizona that places signs up to invite people to its weekly services and inform them where they are being held. Good News Church and its pastor Clyde Reed are urging the Court to strike down the town of Gilbert’s sign ordinance, which treats some signs (such as directional signs for events, like a fair or, in this case, a church service) differently from others (like political, real estate, or ideological signs). The different types of signs have different rules on how large they can be, and where and when they can be posted. Good News Church argues the law is an unconstitutional content-based infringement of its First Amendment rights. The lower court had upheld it as content-neutral.

Gilbert regulations generally require a permit before posting a sign, with a number of exceptions that can be posted without a permit. These exceptions (each with specific size, number, and placement rules) include construction signs, open house signs, parking signs, building identification signs, garage sale signs, street address signs, and restaurant menu signs. The church devotes much of its focus to three of the exceptions:

  • Temporary directional signs relating to a qualifying event (like the church’s weekly church service)
    • Size: up to 6 square feet (and up to 6 feet in height)
    • Time: 12 hours before, during, and 1 hour after an event
    • Number: maximum of 4 on a single property
  • Political signs
    • Size: up to 32 square feet
    • Time: any time before election, until 10 days after
    • Number: unlimited
  • Ideological signs
    • Size: up to 20 square feet
    • Time: any time
    • Number: unlimited

The church has signs in the first category to tell people about their weekly church services in the space they rent. The maximum size is smaller than political and ideological signs, fewer can be posted, and they cannot stay up nearly as long. Represented by the far-right Alliance Defending Freedom, Good News Church argues that the city is violating its First Amendment rights by applying different rules to different types of noncommercial signs based on their content. According to the church, any classification based on what a sign says is content-based and therefore subject to the highest level of scrutiny. And if the law’s purpose is, say, to promote traffic safety or aesthetics, then what difference should it make if the sign is for a church service, political candidate, or particular ideology?

A divided panel of the Ninth Amendment disagreed, ruling against the church. It said the distinctions among different types of signs are content-neutral (and thus subject to a somewhat lower level of scrutiny) because Gilbert’s interests in regulating temporary signs are unrelated to the specific content or message of the sign. Each exemption is based on objective criteria related not to the sign’s message, but to the reason for the exemption (such as need for communication about elections, or the need to let event sponsors inform people how to get to the event).


HOLDING FRAUDULENT CORPORATIONS ACCOUNTABLE

Public Employees’ Retirement System of Mississippi v. IndyMac MBS: Timing of lawsuits

The Court is to decide whether the clock stops on a deadline to sue for securities fraud when someone files a class action suit.

This case relates to a key 1974 precedent called American Pipe & Construction Co. v. Utah, where the Supreme Court ruled that the filing of a class action lawsuit stops the clock (“tolls” in legal parlance) on the statute of limitations on filing federal antitrust claims for all potential members of the class, including those who are not actively involved with or even aware of the class action lawsuit. So if a court then doesn’t certify the class for some reason or dismisses its claims, but makes that decision after the statute of limitations has passed, those who would have been included in the class have not lost their opportunity to have their day in court just because they hadn’t made an individual filing in the case.

The current case relates to the financial meltdown of the 2000s and involves federal laws in the Securities Act of 1933 prohibiting sellers of securities from misleading investors. The law has two key time limits: (1) You generally have one year to file a lawsuit, and that can be a year after the untrue or misleading statement is made or discovered. (2) But there is an additional limit, one that restricts just how long after the fact you have to discover the wrongdoing: “In no event shall any such action be brought … more than three years after the security was bona fide offered to the public [or, depending on which section of the law is involved] more than three years after the sale.” The Second Circuit concluded that the American Pipe rule did not apply to this statute.

One of the great benefits of class action litigation is that it protects the rights of people who cannot afford to themselves engage in litigation and may not even realize they have been wronged. It also vastly enhances our society’s ability to hold large corporations responsible when they violate people’s rights. The rule from American Pipe has served that purpose well. But in other contexts, the Roberts Court has significantly undercut the ability of Americans to utilize class actions to protect their rights. If the Court rules that American Pipe doesn’t apply in the securities fraud context, it will be important to see if its reasoning also undercuts American Pipe as a precedent in other contexts.

Omnicare v. Laborers District Council: Holding companies accountable for false statements to investors

The Court is to address what investors need to prove to hold companies accountable for material misstatements in investment material.

When responding to a public offering of company shares, investors may rely on a company’s registration statement with the Securities and Exchange Commission. Under Section 11 of the Securities Act of 1933, investors can sue if that statement “contained an untrue statement of a material fact or omitted to state a material fact [that was] necessary to make the statements therein not misleading.” This case asks what investors need to prove if the purportedly “untrue statement” was the company’s opinion that it wasn’t breaking the law.

Omnicare is the nation’s largest provider of pharmaceutical care for the elderly and other residents of long-term care facilities. In Omnicare’s registration statement, it said that “we believe” that its financial relationships with pharmaceutical manufacturers were legal. The investors here claim that some of those deals constituted unlawful kickbacks. The question is whether that allegation is enough to trigger Section 11.

According to Omnicare, for the investors to have a claim under Section 11, they have to allege that Omnicare didn’t believe the statement when it was made. Otherwise, companies could be held liable for statements of opinion that turn out later not to be true. Two circuit courts have taken that view.

But in this case, the Sixth Circuit took a different approach, one that makes it easier for investors to file a Section 11 claim. That court reasoned that Section 11 is a “strict liability” statute where the state of mind of company officials isn’t relevant, so it’s sufficient to allege that the opinion was false, regardless of whether the company knew at the time it was false. That’s the ruling the investors in this case are asking the Supreme Court to uphold.

In an amicus brief, the Obama Administration takes a middle ground, in which the company isn’t held liable only because it expressed an opinion that turned out not to be true. The Administration argues that a statement of opinion is actionable under Section 11 if: (1) the company didn’t believe it at the time (which both parties in this case agree on), or (2) there was no reasonable basis for the opinion at the time, even if it was sincerely held (which Omnicare disagrees with).

Any ruling by the Roberts Court should keep in mind that Congress enacted Section 11 to encourage maximum disclosure by companies making a public offering. After all, people associated with the company know far more about the business than potential investors could ever know, and Section 11 was intended to dissuade corporations from tricking investors.


CONCLUSION

Just as the Lochner case defined the Supreme Court a century ago as it turned conservative economic policies into constitutional dogma, America finds itself living through the Citizens United era, where the Court again routinely rules in favor of corporate and other powerful interests. By the end of June, we will know if the current term will have been as damaging to Americans’ fundamental rights as recent terms have been.

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The Right Enemies: A Look Back At Right-Wing Attacks On Eric Holder

Attorney General Eric Holder, who today announced his plans to resign, has been a leader in addressing systems of racial discrimination and protecting the fundamental rights of every American to be treated equally under the law and participate in our democracy.

Perhaps it’s not surprising, then, that the Right loves to hate him.

In February of this year, the American Family Association demanded Holder’s impeachment after he had the audacity to treat married same-sex couples like married opposite-sex couples with regard to a host of legal rights and recognitions. Shortly after, both Faith and Freedom Coalition head Ralph Reed and Republican Rep. Tim Huelskamp echoed the call for Holder’s impeachment because of his support for marriage equality. Televangelist Pat Robertson also joined the impeachment parade, alleging that under Holder, “sodomy” was being “elevated above the rights of religious believers.”

Holder’s commitment to redressing racial injustice was no more warmly received by the Right than his work in support of LGBT equality. After Holder spoke out against voter ID laws, which disproportionately harm people of color, Texas Gov. Rick Perry accused him of “purposefully” “incit[ing] racial tension.” Gun Owners of America director Larry Pratt argued that Holder’s open discussion of racial discrimination in the criminal justice system means that he is the real “racist,” asserting last year that Holder wants to “intimidate the rest of the country so that we don’t think about defending ourselves” against “attacks by black mobs on white individuals.” Bryan Fischer of the American Family Association went so far as to say that Holder would never “prosecute someone if the victim is white.” And after Holder visited Ferguson, Missouri last month, David Horowitz outrageously commented that the attorney general was leading a black “lynch mob.”

And those are just a handful of the attacks the Right has leveled against Holder for his work protecting equality under the law.

The fact that the far Right has reacted with so much vitriol to the attorney general’s leadership is a sign not only of how uninterested they are in the civil rights that the Justice Department is meant to protect, but also of how effective Holder’s work has been. The next attorney general should share Holder’s deep commitment to protecting the rights of all Americans – and, by extension, make all the “right” enemies among those hoping to turn back the clock on civil liberties.

This post originally appeared on the PFAW blog.

A State-by-State Round-Up of Voting Rights Today

More than a year ago, the Supreme Court dealt a major blow to voting rights when they struck down a key provision of the Voting Rights Act in their Shelby v. Holder decision. In the wake of this decision, nine states and many other counties that once had to have their voting law changes approved by the federal government before they took effect — what’s known as “preclearance”— no longer have to do so. With the midterm elections rapidly approaching, where does that leave voters in the preclearance states and in other states where legal battles over voting laws are raging?

Yesterday ProPublica published a great round-up of the current landscape of voting rights across the country. Some of the lowlights included:

• Seven preclearance states have announced new restrictions since the Supreme Court rolled back the Voting Rights Act.
• [In 2012], a federal court called Texas's photo ID law [the] “most stringent in the country.” Now, it’s in effect.
• Two months after the Supreme Court ruling on the Voting Rights Act, North Carolina cut early voting and eliminated same-day registration.

ProPublica notes that while glaringly discriminatory barriers like literacy tests are behind us, these legal changes matter a great deal. As voting rights advocates have demonstrated, voter ID laws, limitations on early voting, and voter roll purges disproportionately harm communities of color and other marginalized groups. Rather, Americans agree that no one should be facing barriers to casting a ballot and participating in our democracy.

You can read the full article here.

 

PFAW Foundation

True The Vote Proves What’s Wrong With Its Voter ID Obsession

True the Vote is one of the most influential groups working to make it harder to vote by pushing for restrictive voter ID laws and launching challenges against people it thinks might be ineligible to vote, tactics which are supposedly directed at preventing voter impersonation fraud and double voting — crimes that in reality are exceedingly rare.

In order to cover up the fact that voter ID laws keep many times more people from the polls than the miniscule number of voter impersonation cases that they might prevent, groups like TTV try to conflate in-person voter fraud — the only thing actually targeted by voter ID laws — with faulty voter registration and with rare but persistent kinds of small-scale voter fraud by elected officials that they have no intention of actually combating.

A great example of this happened yesterday, when TTV reprinted a short blog post by former Bush Justice Department official and conservative activist J. Christian Adams linking to a story about “Three PA Elected Officials Charged With Voter Fraud.”

Adams offers his commentary, implying that this story proves that the numerous studies discrediting the voter ID push are just wrong:

I am curious to see if this barely reported case of voter fraud ever makes it onto one of the ‘academic’ studies purporting to demonstrate very little voter fraud. Those studies are characterized by false negatives.

A quick look at the story in question, however, shows that what happened in Pennsylvania has nothing to do with voter ID or any so-called “voter integrity” laws that Adams and TTV are promoting.

Pennsylvania requires that people requesting an absentee ballot provide a reason, which can be “illness or physical disability” that makes the voter “unable to attend his/her polling place or to operate a voting machine.” Those voters must also provide a copy of their photo ID.

The case that Adams and TTV are touting is that of three township supervisors who were charged with violating election laws in 2011, two for helping 13 elderly voters to apply for and fill out absentee ballots , despite the fact that all were physically able to go to the polls on Election Day and were thus ineligible to obtain absentee ballots in Pennsylvania. One of the supervisors is charged with helping an eligible absentee voter fill out a ballot but failing to report that he had assisted the voter.

None of this would have been prevented by a voter ID requirement. Instead, this is an instance of, at best, a misunderstanding and at worst, public officials using their insider influence to tinker with ballots.

If it’s the latter, all sorts of laws are currently on the books to prevent such instances of election fraud. But it is not something that so-called “voter integrity” activists have shown any interest in addressing, perhaps because it’s already against the law and policed. As the Brennan Center wrote in a 2007 report, such conduct “has been an issue since Senators wore togas” and is a completely separate issue from the kind of supposed fraud that groups like True The Vote claim to be fixing with suppressive voting restrictions.

It is extremely rare for individuals to vote multiple times, vote as someone else, or vote despite knowing that they are ineligible. These rare occurrences, however, are often conflated with other forms of election irregularities or misconduct, under the misleading and overbroad label of “voter fraud.” Some of these other irregularities result from honest mistakes by election officials or voters, such as confusion as to whether a particular person is actually eligible to vote. Some irregularities result from technological glitches, whether sinister or benign: for example, voting machines may record inaccurate tallies. And some involve fraud or intentional misconduct perpetrated by actors other than individual voters: for example, flyers may spread misinformation about the proper locations or procedures for voting; thugs may be dispatched to intimidate voters at the polls; missing ballot boxes may mysteriously reappear. These more common forms of misconduct are simply not addressed by the supposed “anti-fraud” measures generally proposed.

PFAW and Allies Deliver Half a Million Signatures Calling on Congress to Restore the Voting Rights Act

On Wednesday, PFAW joined representatives from a number of organizations similarly concerned with civil rights and the cornerstone of American democracy – the right to vote – on Capitol Hill to present Speaker John Boehner with the signatures of more than 500,000 Americans demanding that Congress move forward in restoring key provisions of the landmark Voting Rights Act.

Today, access to the voting booth has become an increasingly imperiled right for many Americans, thanks to the Supreme Court’s decision last year in Shelby County v. Holder. Across the country, states and localities are making changes to voting laws that make it more complicated and onerous to carry out a fundamental civic duty, especially for ethnic and racial minorities, the elderly, and student voters.

However, the Republican leadership in the House does not seem to share the public’s sense of urgency on compromised voting access. Tellingly, neither Speaker Boehner nor his staff acknowledged the coalition’s attempt to deliver the signatures in-person. The office that he keeps for his congressional district was locked, and knocks went unanswered, shutting out the American people, including his constituents, in the middle of a workday while Congress is in session.

In a press conference following the attempted delivery of the petitions, lawmakers and representatives from the #VRA4Today coalition of more than 50 advocacy groups spoke of the need to strengthen the rights of voters and restore the critical protections of the Voting Rights Act. Marge Baker, executive vice president of People For the American Way, said:

Repairing the damage done by the court majority in Shelby is a critical test of whether Congress can put partisanship behind to protect our democracy. The will of the people is clear: we will not tolerate voting discrimination in our country, we will not turn back the clock.

Joining in this sentiment was House Minority Whip Steny Hoyer, who urged his colleagues to support the rights of Americans to participate in their government. “The right to vote is the most fundamental right in a democracy,” he said. “It is the right to have one’s voice heard.”
 

PFAW

Voting Developments in Ohio and Wisconsin Show, Again, Why #CourtsMatter

The past week held both good news and bad news for voting rights, depending on your part of the country. On Friday in Ohio, an appeals court declined to put on hold a ruling that expands early voting in the state, a win for those of us who believe that voting should be fair and accessible for all people. But on the same day, an appeals court gave the okay to Wisconsin’s voter ID law — a law that had been blocked months ago by a federal judge who noted that it disproportionately affects Latino and black communities.

Commentators have noted that instating the new voter ID law in Wisconsin so close to an election could cause real confusion for voters, and advocates are asking for a re-hearing. As election law expert Rick Hasen said, “It is hard enough to administer an election with set rules — much less to change the rules midstream.”

Beyond the practical implications for voters, it’s also important to connect the dots back to how these decisions happened and who was making them. As The Nation’s Ari Berman wrote on Friday night:

[A] panel of Democrat-appointed judges on the Sixth Circuit upheld a preliminary injunction from a Democrat-appointed district court judge striking down Ohio’s cuts to early voting. Two hours earlier, however, a trio of Republican-appointed judges on the Seventh Circuit overturned an injunction from a Democratic judge blocking Wisconsin’s voter ID law.

This is why elections matter. And the courts are increasingly becoming the arbiters of who does and does not get to participate in them. [emphasis added]

PFAW

How Catherine Engelbrecht Got Greg Abbott To Shut Down A Houston Voter Registration Drive

This weekend, the Dallas Morning News ran a long investigative piece exposing for the first time an armed raid that state Attorney General Greg Abbott's office ordered on a Houston voter registration operation, Houston Votes, back in 2010. The aftermath played out like ACORN in miniature: Despite the fact that nobody at Houston Votes was charged with any wrongdoing, the organization folded under the pressure of Abbott’s investigation.

The story provides an interesting look at the mechanics of the GOP’s obsessive search for certain types of extraordinarily rare voter fraud in order to justify extreme measures making it harder to cast a ballot. And it also stars two people who have since become familiar names in the national effort to make it more difficult to vote: Abbott, who is now the GOP nominee for governor of Texas, and Catherine Engelbrecht, who now runs the national group True the Vote, but who got her start running a Texas Tea Party group called King Street Patriots.

The raid on Houston Votes was part of a larger campaign by Abbott to uncover what he calls an “epidemic” of voter fraud, in an apparent effort to build support for a restrictive Voter ID law in Texas. Abbott’s campaign hasn’t exactly been a success: According to MSNBC’s Zach Roth, “over the 13 years of Abbott’s tenure, his office can only cite two fraudulent votes that might have been stopped by the ID law.” In the meantime, Abbott’s effort has resulted in some strangely zealous prosecutions, including those of a group of Tea Party activists who tried to cast protest votes in a resident-less utility district.

Dallas Morning News reporter James Drew explains how a racially charged speech by Engelbrecht led to Abbot’s investigation of and raid on Houston Votes:

On an overcast Monday afternoon, officers in bulletproof vests swept into a house on Houston’s north side. The armed deputies and agents served a search warrant. They carted away computers, hard drives and documents.

The raid targeted a voter registration group called Houston Votes, which was accused of election fraud. It was initiated by investigators for Attorney General Greg Abbott. His aides say he is duty-bound to preserve the integrity of the ballot box.

His critics, however, say that what Abbott has really sought to preserve is the power of the Republican Party in Texas. They accuse him of political partisanship, targeting key Democratic voting blocs, especially minorities and the poor, in ways that make it harder for them to vote, or for their votes to count.

A close examination of the Houston Votes case reveals the consequences when an elected official pursues hotly contested allegations of election fraud.

The investigation was closed one year after the raid, with no charges filed. But for Houston Votes, the damage was done. Its funding dried up, and its efforts to register more low-income voters ended. Its records and office equipment never were returned. Instead, under a 2013 court order obtained by Abbott’s office, they were destroyed.

Fred Lewis formed Texans Together in 2006.

The nonprofit community organizing group used volunteers to register voters in 2008 under the name Houston Votes. It registered only about 6,000 people that year.

For the next big election, in 2010, Lewis wanted to register 100,000 new voters in Harris County. He knew he couldn’t hit that number with volunteers. Houston Votes decided to use paid workers.

By that summer, Houston Votes had come to the attention of the King Street Patriots, a Houston-based tea party group. At the group’s regular meeting in Houston, its leader, Catherine Engelbrecht, talked about the New Black Panther Party. She then played a Fox news clip of an unidentified black man saying: “We have to exterminate white people off the face of the planet.”

The clip was 5 years old. It came from a forum in Washington about media coverage of Hurricane Katrina. But after the clip ended, Engelbrecht showed a picture of a house in Houston. She said it was the office of the New Black Panthers, at Main and Dowling streets.

Dowling Street is infamous for a 1970 gun battle between police officers and African-American militants, one of whom was killed.

“Houston has a new neighbor,” Engelbrecht said. She added that a person outside the house appeared to be an employee of Houston Votes.

The house shown on the screen was the office of Houston Votes. It had nothing to do with the New Black Panther Party. And it was about 9 miles from Dowling Street.

Two weeks later, the King Street Patriots held another meeting. Paul Bettencourt, the former Harris County tax assessor-collector, was a guest speaker.

He said Houston Votes was worse at registering voters than ACORN, the Association of Community Organizations for Reform Now. Dozens of ACORN employees across the nation were convicted of voter registration fraud.

The next day, Bettencourt’s successor as tax assessor-collector, fellow Republican Leo Vasquez, held a news conference.

“The integrity of the voter roll of Harris County, Texas, appears to be under an organized and systematic attack by the group operating under the name ‘Houston Votes,’” he said.

Houston Votes had submitted about 25,000 voter registration applications. Vasquez said many were duplicates, or already registered. Only 7,193 were “apparently new voters,” he said.

Houston Votes later pointed to public records showing that at the time of the news conference, about 21,000 of the 25,000 who applied to register were already validated by the county and pending final approval by the secretary of state. Among those 21,000, the state had already given final approval to 7,193.

Vasquez announced he was referring the matter for “investigation and possible prosecution” to the Texas secretary of state and the Harris County district attorney.

The secretary of state, who advises local election officials on election laws, forwarded Vasquez’s information to the attorney general’s office on Sept. 14, 2010.

Abbott’s office opened a criminal investigation soon after.

Conservative Pundit: Kerry Declined Ohio Recount To Hide Rampant 'Voter Fraud In Favor Of Democrats'

Mat Staver hosted Valencia College professor Mark Logas on his “Faith and Freedom” radio program this week to hype the issue of voter fraud, the exceedingly rare crime that is being used by conservatives to push wave upon wave of voter suppression measures.

Logas was full of horror stories supposedly illustrating an epidemic of voter fraud, somehow all favoring Democrats. He even went back in history to argue that John Kerry declined to contest his narrow loss in Ohio in 2004 because a recount would have “exposed the voter fraud in favor of Democrats that goes on in Ohio alone.”

Specifically, he claimed that in 2004, in Franklin County, Ohio, which includes the city of Columbus, “there were more people who voted than lived there.”

Stunningly, this is not true! Although conservative activists raised a fuss when the number of voter registrations in the country exceeded the number of eligible voters — the result of outdated voter rolls — in the end, 533,000 people cast ballots in Franklin County in 2004 , which was decidedly less than the county’s estimated 815,000 voting-age population at the time.

And in the end, there actually was a recount of Ohio’s votes in 2004, requested by the Green and Libertarian parties, that did not uncover rampant Democratic voter fraud but in fact showed that Kerry had won a few hundred more votes than originally reported.

Staver: And you look at the presidential election in Florida in 2000 with George W. Bush and Al Gore. I mean, obviously that was a presidential election that was decided in one state, and that was very, very close. Huge possibility of having complete voter fraud the other way.

Logas: I don’t know if you remember in 2004, John Kerry barely lost Ohio and there were a lot of Democrats, liberal Democrats, that said, ‘You’ve got to challenge it, you’ve got to do a recount in Ohio!’ and he says, ‘No, no, no, I’m not going to do that.’ Why? Because in Franklin County, Ohio, in 2004, there were more people who voted than lived there. Not registered voters, than lived in the entire Franklin County.

Staver: So 100-plus percent voting.

Logas: Exactly. So for them to have challenged that exposed the voter fraud in favor of Democrats that goes on in Ohio alone.

Staver: Unbelievable.

Kris Kobach: Pro-Voting-Rights Religious Leaders Represent 'Churches In Quotation Marks'

African American religious leaders in Kansas are speaking out against the state’s new voter-ID law that has suspended the voting rights of 19,000 Kansans. In response, Kansas Secretary of State Kris Kobach — the driving force behind Kansas’ law and similar measures across the country — is accusing them of representing “churches in quotation marks.”

A group of African American church leaders, primarily from the African Methodist Episcopal (AME) Church, denounced Kansas’ voter ID law in June as an effort to “turn back the clock on our rights.”

When an interviewer from the Topeka radio station WIBW asked Kobach about religious opposition to his plan yesterday, Kobach responded, “Kansans overwhelmingly approve it. I don’t know which churches — and I would put churches in quotation marks, because the vast majority of church leaders that I’ve spoken to are fully in favor of our photo ID law.”

He added that he found it “ridiculous to argue that a voter ID is a burden on the right to vote” because “everybody’s got one.” He added that the opposition to his law is “so funny to me.”

Kris Kobach: If People Have Trouble Registering To Vote, It's Their Own Fault

Kris Kobach is the brains behind some of the most notorious voter suppression and anti-immigrant measures in the country. He also has a day job as the secretary of state of Kansas. That’s why we’ve been closely following Kobach’s attempts to implement one of the nation’s strictest voter ID law in his own state — it offers a glimpse into what voter-suppression advocates would like to see throughout the country, and what voting rights proponents fear.

This year, Kobach is implementing for the first time a law that he encouraged the state legislature to pass in 2011 that requires Kansans to present one of a narrow set of proof-of-citizenship documents (such as a birth certificate or naturalization certificate) in order to register to vote.

So far, it’s been an unqualified mess. Two weeks before the state’s primary election, 19,000 Kansas voters still have incomplete registrations. On top of that, Kobach has implemented a two-track voting system so that people who fill out a federal voter registration form but don’t provide the extra citizenship documents are allowed to vote only in federal elections. Even voters who dig up the correct documentation and follow the instructions laid out by Kobach’s office have reported problems with getting that information to elections officials.

The debacle has drawn Kobach a Republican primary challenger, Scott Morgan, who has criticized the secretary of state for the voter-registration disaster and for the large amount of time he spends working on his pet projects in other states.

Last weekend, Kobach and Morgan held a debate, at which Kobach once again repeated his philosophy that if 19,000 Kansans aren’t finished with his byzantine voter-registration process, it’s just because they’re procrastinators who don’t care enough to vote anyway.

“They aren’t being prevented from anything,” he said of the 19,000 people whose voter registrations are on hold. “They’re simply not yet completing the process.”

In the three years after Arizona passed a similar law in 2004, 30,000 people were turned away from the polls.

Janet Mefferd: Border Crisis, Voting Rights All Part Of Effort To 'Collapse The System'

On her radio show yesterday, Janet Mefferd read extensively from a recent article on the conservative site Western Journalism, which argues that the crisis of refugee children on the border and the landmark “Motor Voter” law are both parts of a concerted liberal plot to “collapse the system” in America.

“Is this what’s going on?” Mefferd asked. “Of course this is what’s going on. This is what they wanted.”

Judicial Watch Claims Voting Rights Suit Is Plot To Legalize Non-Citizen Voting

The right-wing group Judicial Watch has filed an amicus brief in support of Kansas and Arizona’s effort to add an extra, burdensome proof of citizenship requirement to federal voter registration forms in their states. A new law requiring citizenship documents to register has created a huge mess in Kansas, where tens of thousands of residents have been left with incomplete registrations and Secretary of State Kris Kobach has instituted a two-tiered voting system allowing some people to vote in federal elections but not state elections.

The Election Assistance Commission has been fighting Kobach’s effort to expand his law to federal forms, noting that his extra proof-of-citizenship requirement would deter far more eligible voters than the tiny number of illegal votes it would prevent. (The EAC’s filing to the Tenth Circuit notes that Kansas claims to have found 21 cases of noncitizens registering or attempting to register to vote in the state, although the EAC implies that the actual number is even lower. Meanwhile, 18,000 citizens have had their registrations suspended thanks to the new law.)

In an op-ed for Brietbart News today, Judicial Watch president Tom Fitton argues that the Obama administration is fighting Kobach’s effort not because they want to protect voting rights, but as part of a sneaky plot to legalize noncitizen voting in all federal elections.

Fitton, of course, ties this to the influx of Central American children fleeing to the U.S. border, echoing Louie Gohmert’s claim that the president will encourage the refugee children to commit voter fraud. 

One of the many negative downstream consequences of illegal aliens flooding across the border is the increased possibility of voter fraud. Obama and his leftist allies are committed to thwarting any effort by states to protect the integrity of the voting process that would prevent illegal aliens and other ineligible individuals from voting.

As CIS points out, every single state in the United States legally bars non-citizens from voting in national or state elections. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, signed into law by President Clinton, made it a crime for any non-citizen to vote in a federal election.

This is a fact so basic and so well-documented, says CIS, that 94% of fourth graders tested on the question of whether or not non-citizens could vote got the question correct.

So why are leftists inside the Obama administration in the bottom 6% of a fourth grade class? It’s certainly not because they don’t understand the law. They understand it perfectly well. It’s because they don’t agree with the law, want to change it, and know they would not have a snowball’s chance in you-know-where driving that kind of legislation through Congress. So they do what they always do: Ignore the law, go to court, and hope judges allow them to get away with the lawlessness.

You also should know that the campaign to allow non-citizens to vote is a national effort that has already borne fruit. Per CIS: “there are several municipalities in the United States that currently allow non-citizens to vote in local elections. Moreover, legislation to allow non-citizens to vote has been introduced in a number of states and localities including Washington, D.C., San Francisco, and New York City.”

Kansas and Arizona, however, were not willing to “play ball” with leftists who boldly court non-citizen voting. And that’s why they (and we) are active in court.

Failing to Defend the Right to Vote Is Simply Not an Option

As we work to ensure not only that President Obama receives legislation without undue delay, but also that whatever language he signs protects as many voters as possible from discrimination, it is important to remember those who died a half century ago fighting for this very cause.
PFAW

PFAW Commends Senate Hearing on VRA Legislation, Urges House to Follow Suit

WASHINGTON – Today the Senate Judiciary Committee is holding a hearing on the Voting Rights Amendment Act (VRAA), legislation that addresses the Supreme Court’s decision one year ago in Shelby County v. Holder. People For the American Way's Executive Vice President Marge Baker released the following statement:

“One year ago today, the Supreme Court gutted a key provision of one of our country’s crowning civil rights triumphs, the Voting Rights Act of 1965. We applaud the Senate Judiciary Committee for taking up the important work of repairing the harm done by the Shelby decision. Unfortunately, we can’t say the same for House Republican leadership, who have steadfastly refused to act.

“The right to vote is our most precious right as citizens. Failing to defend this right is simply not an option. Will House leadership stand up and act to protect every American’s right to cast a ballot that counts, or will they stand by and allow that right to increasingly come under attack?”

Today People For the American Way and its African American Ministers In Action program submitted letters on behalf of members, activists and a network of faith leaders thanking the Senate for moving forward on the VRAA and urging the House to do the same.

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Yes, Kansas's Proof-Of-Citizenship Law Is Disenfranchising People

Nearly one month before the state’s August 5 primary elections, 18,000 Kansas voters are still barred from the ballot box because of incomplete paperwork under the state’s new law requiring proof of citizenship to vote.

Kansas Secretary of State Kris Kobach, the major player behind the passage and implementation of the new law, has consistently pushed back on criticism by claiming that “nobody’s been denied any rights” and that the thousands of Kansans with suspended registration are just “procrastinators” who haven't gotten around to producing the required birth certificate, passport  or similar document to election authorites.

Now, of course, stories are emerging that show that the thousands of Kansans caught in registration limbo aren’t just “procrastinators” and that the system that he claims is quick and easy to use is in fact leaving people behind.

This weekend, the Wichita Eagle interviewed one such voter, Michael Nucci, who had his registration suspended despite having shown up at the DMV with his passport, one of the approved proof-of-citizenship documents:

Michael Nucci, a voter who was placed in incomplete status, said he found the process difficult.

Nucci, 43, moved to Wichita from Florida in 2012 and registered to vote without any problems. But in December 2013, when Nucci moved to a new address, he went to the DMV to update his registration and brought along his passport and phone bill. A week later, he said, he received a letter telling him his registration had been suspended.

Nucci contacted the Sedgwick County Election Office and was told to send a copy of his passport.

“There’s something involved between DMV and the election office where they are not on the same system. And I think it’s ridiculous,” Nucci said. “And I didn’t send them my passport because I already brought it to the DMV both times. Why should I send them a copy of my passport again, a third time?

“I’ve had no problem (registering to vote) until I came to Kansas,” Nucci said.

Today, the Eagle reported that the daughter of Kobach’s Republican primary challenger, Scott Morgan, was in a similar position — she uploaded a picture of her passport to Kobach’s website and still was informed that her registration had been suspended. Morgan told the paper that he was afraid that such “hurdles” to voter registration would discourage young voters:

Morgan said his daughter registered online through the secretary of state’s website and that he watched her upload a picture of her passport.

“It’s all these things that the average 18-year-old is just going to say, ‘the heck with it,’ ” Morgan said. He said that the online system repeatedly froze as she went through the registration process. “And it’s just phenomenal that we think it’s okay to put these kind of hurdles in front of these people who are trying to register to vote.”

Morgan said such issues could dissuade young people from voting.

“It’s hard enough to get 18-year-olds to get excited about voting anyway. And this is the kind of thing where each one of these steps, whether it’s the browser freezing up or the cumbersome form … each one of those you lose people,” Morgan said.

Morgan said his family couldn’t help but laugh upon receiving the letter, joking that many people would think it was something he made up for the campaign. But he took a photograph of his daughter holding her letter and posted it on Facebook as proof.

“When you get it, you laugh about it, because it’s so absurd. But then the sad thing is the absurdity is the reality of what we’ve created here in Kansas to protect ourselves from something that doesn’t exist,” Morgan said.

And this isn’t even to mention the hundred or so Kansans who will be able to vote only in federal elections in August, thanks to Kobach’s new two-tiered voting system. Or voters who don't have the required proof-of-citizenship documents at all and have to go through a time-consuming process with the state elections board in order to have their voting rights restored.

But Kobach apparently sees these problems as growing pains: He warned the Eagle that Morgan and his Democratic opponent just want to “wave the white flag and give up” on his voting scheme.

PFAW Calls Senate Hearing on VRA Legislation an “Important Step"

WASHINGTON –Chairman Patrick Leahy announced yesterday that the Senate Judiciary Committee will hold a hearing on June 25 on the Voting Rights Amendment Act (VRAA), legislation intended to repair damage done by the Supreme Court last year in Shelby County v. Holder. People For the American Way's Executive Vice President Marge Baker released the following statement:

“Chairman Leahy and the Judiciary Committee should be commended for taking an important step toward correcting the damage done by last year’s Shelby decision. The right to vote is the most fundamental right in our democracy, which is why we need a modern, effective Voting Rights Act to protect it. We urge the Senate to move quickly on this, and the House to follow suit. With another national election looming, now is the time to move forward to protect the right to vote for all.”

The day of the Senate hearing will mark one year since the Supreme Court gutted a key provision of the Voting Rights Act in its Shelby decision. While a bipartisan group of House members joined Chairman Leahy to introduce the VRAA in January, the House Judiciary Committee has yet to schedule a hearing.

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True The Vote Claims Voting Rights Act Encourages 'Race-Based Segregation'

In a fundraising email today, the voter-fraud mavens at True the Vote claim that a proposed bipartisan update to the Voting Rights Act is in fact a “move toward race-based segregation” that would “exclude millions of Americans from the full protection of the law — based solely on the color of their skin" and “turn our elections over to Eric Holder and Barack Obama.”

The Voting Rights Amendment Act is a bipartisan bill that would replace the formula that determines which areas are subject to Justice Department preclearance for changes in their voting laws. The previous formula was struck down by the Supreme Court last year, although the rest of the law remained.

The proposed formula, like its predecessor, would require states and counties with a history of voting restrictions targeting minority voters to obtain preclearance from the Justice Department before changing their voting laws. The preclearance provision, enacted to stop rampant Jim-Crow-era racial discrimination at the polls has for decades helped stem attempts to disenfranchise minority voters.

But according to True the Vote founder Catherine Engelbrecht, the very fact that the Voting Rights Act and the proposed coverage update are meant to stop racial discrimination at the polls means that they are the product of “race baiters” who want to “divide voters into color blocks for partisan gain” and “move toward race-based segregation.”

I'm sending you this message on the most urgent of topics!

Congress is considering a bill that could ultimately turn our elections over to Eric Holder and Barack Obama.

The bill is HR 3899. Bill sponsors have named it the Voting Rights Amendment Act, but we’re calling it what it really is- the Voting Rights Segregation Act. If it is not stopped, HR 3899 will fundamentally and intentionally change American elections into race-reliant battlefields where, for the first time in our history, the United States would EXCLUDE millions of Americans from the full protection of the law – based solely on the color of their skin.

HR 3899 also targets five states that will immediately be put under the authority of Holder’s Dept of Justice, requiring that they pre-clear election activities with Holder’s DOJ, effective immediately upon passage of the bill! The currently targeted states are Texas, Louisiana, Mississippi, Georgia and North Carolina. The Bill also gives Eric Holder the exclusive right to target other states for any reason he sees fit, including the passage and implementation of photo Voter ID laws.

This Country has gone through too much and come too far to now watch silently as the professional race baiters in Congress, like Reps. Jim Sensenbrenner and Sheila Jackson Lee, divide voters into color blocks for partisan gain.

Will you please help support True the Vote's effort to kill this terrible race based bill?

Earlier this week True the Vote led a group of pro-liberty election integrity organizations in requesting GOP House Majority Leader Eric Cantor to meet with our organizations to discuss the reasons this bill is an ill advised move toward race-based segregation. Last night, Cantor's constituents let him know what they thought of his position on HR 3899- by voting him out of office. But make no mistake, the battle for HR 3899 is far from won.

Kansas Moves Ahead With Two-Tiered Voting System, Some Voters Allowed To Cast Ballots Only In Federal Elections

We reported last year on Kansas Secretary of State Kris Kobach’s plan to create a two-tiered voting system in his state, in which voters who registered with a federal voter registration form but did not meet the state’s strict new citizenship documentation requirement would be allowed to cast ballots in federal elections but would be barred from participating state elections.

Kobach claimed at the time that the two-tiered system was “merely a contingency plan” in the event that he lost a lawsuit seeking to require the federal form used in Kansas to include the state’s proof-of-citizenship requirement. Kobach won that suit, but the decision has been stayed pending appeal, meaning that Kansas will go ahead with Kobach’s two-tiered system in this summer's primaries, reports the Associated Press. Arizona, which joined Kansas on the lawsuit, is implementing a similar system.

The good news is that, according to Kobach, fewer than 100 Kansans who registered with the federal form but didn’t provide the correct citizenship documentation will be the inaugural members of the new federal-elections-only voting tier. Those voters, according to the AP, "will be given full provisional ballots during the Aug. 5 primary elections — but only the votes they cast in federal races will actually be counted."

The bad news is that 18,000 Kansans who registered with the state form but couldn’t provide the correct documentation still can’t vote in either type of election.

Kobach, of course, continues to claim that “no one is disenfranchised” by his policies.

AP:

WICHITA — Kansas voters who registered using a national form without providing proof of U.S. citizenship will be given full provisional ballots during the Aug. 5 primary elections — but only the votes they cast in federal races will actually be counted, the state’s top election official said Tuesday.

Secretary of State Kris Kobach told The Associated Press that fewer than 100 Kansas voters who used the federal registration form without providing citizenship documents will be affected.

“No one is disenfranchised — any person can vote a full ballot by providing proof of citizenship,” Kobach said. “The notion a person is disenfranchised because they have to provide proof of citizenship is a silly one.”

As of Tuesday, more than 18,000 Kansans still had their voter registrations suspended pending documentation of citizenship. The vast majority used the state form to register, and they will still not be allowed to vote at all in the primary or general election unless they prove to state election officials that they are U.S. citizens.

The exception that allows the federal registrants to still vote in the August primaries for federal races comes because the 10th Circuit Court of Appeals stayed a judge’s ruling that had forced federal election officials to help Kansas and Arizona enforce their citizenship requirements.

Peas In A Pod: Ted Nugent Raising Money For 'Ass Kickin BloodBrother' Kris Kobach

Kansas Secretary of State Kris Kobach’s Republican primary opponent is criticizing Kobach for his association with Ted Nugent, the rocker whose violent and racist rants have landed other politicians who have campaigned with him in hot water.

Nugent posted a photo of himself and Kobach on Facebook on Wednesday, accompanied by a plea for his fans to donate to the reelection campaign of his “ass kickin BloodBrother” Kobach.

Nugent, unsurprisingly, praises Kobach for his work pushing anti-immigrant and voter suppression policies throughout the country, including helping to write Arizona’s infamous SB1070 and passing a widely-slammed voter-ID law in Kansas that has left thousands of voters with suspended registrations. Or, in the words of Nugent, Kobach is “taking on the America hating ObamaGang at every turn” and “leading the states’ rights movement in America.”

Kobach told the Lawrence Journal-World that the photo of him and Nugent was taken in 2011 when he “ he went to Texas one weekend and participated in a hunt of feral pigs from a helicopter” as part of his work with “Nugent and Texas officials” on “legislation that expanded the ability of hunters to kill feral hogs from helicopters.”

“The Leftists and commies are working overtime to defeat him in this year’s election,” Nugent writes. “Let’s help him reload so he can keep up the fight!” He asks his supporters to use a link for their donations that will let Kobach know "which contributions are coming from Uncle Ted's crew."

I swear to God we the people damn well better get crackin & support the few brave warriors who stand with us & the US Constitution & Bill of Rights ABSOLUTELY everytime! Kris Kobach is our ass kickin BloodBrother & on the frontlines taking on the America hating ObamaGang at every turn.

Please help Kansas Secretary of State Kris Kobach drop a “money bomb” on Facebook! We may not live in KS, but Kris takes our fight directly to the enemies of America everyday!

For those of you who don’t already know him, Kris is the patriot who:

1. Co-authored the Arizona illegal immigration law.

2. Is suing the federal government so that Kansas and Arizona can require newly-registered voters to prove their US citizenship.

3. Is representing the 10 ICE agents who are suing the Obama Administration because Obama is ordering them to break the law.

4. Co-authored the Kansas law that says the feds can’t regulate a gun made in Kansas, as long as that the gun never leaves the state.


In other words, Kris is a major thorn in the side of Obama. And he is leading the states’ rights movement in America. He’s also an avid hunter and backstrap BloodBrother who’s a dear pig killin friend of mine. Here’s a picture of us hunting hogs together in Texas just before we rallied to legalize helicopter pig hunting! Yes, Kris & I did that!!

The Leftists and commies are working overtime to defeat him in this year’s election. Let’s help him reload so he can keep up the fight!

This is a KILLER op to make a HUGE upgrade for America! HITIT!

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